Hancock v. Leong, M.D. et al

Filing 37

FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED, Without Prejudice, Based on Plaintiff's Failure to Prosecute re 7 Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Stanley A. Boone on 6/2/2015. Referred to Judge O'Neill. Objections to F&R due within fourteen (14) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES HANCOCK,

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Plaintiff,

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v.

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A. LEONG, et al.,

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Defendants.

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Case No.: 1:13-cv-00325-LJO-SAB (PC)
FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF ACTION
FOR FAILURE TO PROSECUTE
[ECF No. 35]

Plaintiff James Hancock is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
On April 24, 2015, the Court issued an order to show cause within thirty days as to why the

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action should not be dismissed for failure to update his address of record and failure to prosecute this

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action. (ECF No. 35.) The thirty day time period has expired and Plaintiff has failed to respond to the

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Court’s order.

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“In determining whether to dismiss an action for lack of prosecution, the district court is

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required to consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2)

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the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy

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favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Carey

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v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks and citation omitted); accord

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Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re Phenylpropanolamine (PPA)
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Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006). These factors guide a court in

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deciding what to do, and are not conditions that must be met in order for a court to take action. In re

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PPA, 460 F.3d at 1226 (citation omitted).

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This case has been pending since 2013, and the expeditious resolution of litigation and the

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Court’s need to manage its docket weigh in favor of dismissal. Id. at 1227. Further, the opposing

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party is necessarily prejudiced when he is unaware of the plaintiff’s location during the discovery

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phase of the litigation. Id.

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With respect to the fourth factor, “public policy favoring disposition of cases on their merits

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strongly counsels against dismissal,” but “this factor lends little support to a party whose responsibility

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it is to move a case toward disposition on the merits but whose conduct impedes progress in that

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direction.” Id. at 1228.

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Finally, given the Court’s and Defendant’s inability to communicate with Plaintiff, there are no

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other reasonable alternatives available to address Plaintiff’s failure to prosecute. In re PPA, 460 F.3d

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at 1228-29; Carey, 856 F.2d at 1441.
Accordingly, the Court HEREBY RECOMMENDS DISMISSAL of this action, without

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prejudice, based on Plaintiff’s failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 183(b).
This Findings and Recommendation will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14)

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days after being served with these Findings and Recommendation, the parties may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendation.” The parties are advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-

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39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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June 2, 2015
UNITED STATES MAGISTRATE JUDGE

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